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Juridification, sovereignty and separation of powers.

Abstract

MARK Bevir is right to highlight a number of similar concerns that underpin our respective views; equally he is right to note that our responses to these concerns differ. In suggesting that Bevir's article portrayed the juridification of the constitution as ‘an incontrovertible and relentless’ process, I did not mean to suggest that Bevir himself supported the fact that it should be so, as he seems to think. Rather, my suggestion was that the tone of Bevir's piece was one of resignation; a lament for the hopes of representative and—more saliently—participatory democracy in an increasingly judicio-centric constitution. It is on this basis that I suggest that Bevir treats law as being apart from politics; by appearing to suggest that the developments identified as ‘juridification’ are an unfortunate taint on the democratic or political process, rather than a necessary characteristic of a democracy under the rule of law. It is on this point that our differences are most apparent.
Bevir's scepticism over the increased role played by the judicial branch in scrutinising the actions of elected officials and bodies may, in part at least, be attributed to his apparent rejection of the idea of judicial independence. To legitimately fulfil their constitutional obligations, the independence of the judiciary must be preserved. Even though the British constitution has been argued to almost completely disregard the separation of powers in every other sense, the institutional separation of judiciary and executive is rightly seen as a constitutional fundamental; simply as a matter of procedural fairness, more widely as evidence of the resonance of the rule of law. Bevir, however, repeatedly suggests that the Labour government have been successful in their attempts to treat the courts as ‘part of the policy-making process to be cajoled and …

This is a pre-copy-editing author-produced PDF of an article accepted for publication in Parliamentary affairs following peer review. The definitive publisher-authenticated version Masterman, R.M.W. (2009) 'Juridification, sovereignty and separation of powers.', Parliamentary affairs., 62 (3). pp. 499-502 is available online at: http://dx.doi.org/10.1093/pa/gsp014